The Reagan Court - Child of Lyndon Johnson?

By DAVID A. KAPLAN; David A. Kaplan is senior writer for The National Law Journal, from which this article was adapted.

Published: September 4, 1989

Liberals may lament the emergence of a conservative majority on the Supreme Court. But they should not forget that one of their own, Arthur Goldberg, played a major role in shaping the political complexion of the current Court.

Twenty-four years ago, at the behest of his political patron, President Lyndon Johnson, the 56-year-old Justice Goldberg resigned from the Court to become ambassador to the United Nations. That move - call it ''Mr. Goldberg's Goof'' - unleashed a string of events that produced the Burger Court, the Rehnquist Court and today's hard-right philosophy.

The Goldberg resignation in 1965 was engineered by President Johnson so that he could name his friend and confidant, Abe Fortas, to the Court. Three years later, when Chief Justice Earl Warren announced his retirement, President Johnson nominated Justice Fortas to succeed him.

The Senate, though, by way of a filibuster, rejected Mr. Fortas, who resigned altogether in a scandal in 1969. That episode allowed the newly elected Richard Nixon to name Warren Burger and Harry Blackmun to succeed Chief Justice Warren and Justice Fortas.

But consider what would have happened if Mr. Goldberg hadn't quit. There would have been no Court vacancy until 1968, when Chief Justice Warren retired. To replace Mr. Warren, President Johnson likely would have selected Abe Fortas, or maybe Justice Potter Stewart or even Justice Goldberg.

The latter two would have sailed through the Senate. Abe Fortas, too, probably would have been confirmed; after all, his lapses as a sitting Justice that caused him to resign - advising President Johnson on political matters and accepting a $15,000 fee for nine lectures given at American University - would have been perfectly acceptable were he still in private law practice.

Still, the Court in 1971 would have been very liberal, probably consisting of Justices Black, Brennan, Douglas, Fortas, Goldberg, Harlan, Marshall, Stewart and White. It would have had no Nixon appointees.

Late in 1971, however, Justice Hugo Black and Justice John Harlan died, opening two slots. It's reasonable to assume that Mr. Nixon would have named the first two individuals he in fact named: Warren Burger and Clement Haynsworth (then and now a Federal judge in Greenville, S.C.). Mr. Burger would have been confirmed as a Justice (since the chief's slot already would have been filled) and so, too, likely would have been Judge Haynsworth.

The way it actually happened, Mr. Nixon nominated Judge Haynsworth in 1969 to succeed Justice Fortas. But Mr. Haynsworth was rejected in a close Senate vote, possibly as a Democratic payback for the sacking of Abe Fortas. Thus - assuming the scenario that Justice Goldberg stayed and the Fortas battle consequently never happened - Judge Haynsworth, a moderate, likely would have been approved.

If Warren Burger and Clement Haynsworth had joined the Court in 1971, then Harry Blackmun, Lewis Powell and William Rehnquist could not have been nominated. The arrival in 1975 of John Paul Stevens, replacing Justice William O. Douglas, was not affected by Mr. Goldberg's goof; President Gerald Ford would have been able to name him anyway.

So, barring Mr. Goldberg's goof, the Court on the eve of Ronald Reagan's inauguration in 1981 would have consisted of Chief Justice Burger and Justices Brennan, Goldberg, Haynsworth, Marshall, Stevens, Stewart, White and one other - either Mr. Fortas or whoever replaced Earl Warren as Chief Justice.

Some of what happened during the Reagan Administration would be little changed by the no-goof scenario. In the summer of 1981, Potter Stewart left and was replaced by Sandra Day O'Connor. In 1986, the retiring Warren Burger was replaced as Chief Justice by William Rehnquist, whose place as a Justice was taken by Antonin Scalia. However, without the Goldberg resignation, there would have been no vacancy in 1986 (since Justice Powell, who resigned, wouldn't have been named to the Court in the first place) , and no Senate battle over Robert Bork or confirmation of Anthony Kennedy.

Now, consider the line-up of the Court today, assuming Justice Goldberg had remained. It would have a conservative bloc of Justices Scalia, O'Connor and White, and a liberal-to-moderate bloc of Justices Brennan, Marshall, Stevens and Arthur Goldberg (who continues to practice law in Washington and is younger than Justices Brennan and Marshall).

In the middle would be the 76-year-old Justice Haynsworth, who's no liberal but is close in outlook to John Paul Stevens. That's a working moderate majority of five - regardless of the identity of Justice X (who could be anyone from a Johnson leftover to a Reagan appointee named following the death of Abe Fortas in 1982).

Of course, there is plenty of speculation here. It does make clear, though, the enormous impact on American law of a seemingly small decision a quarter-century ago.